State Records Committee Appeal 2008-13

BEFORE THE STATE RECORDS COMMITTEE OF THE STATE OF UTAH

DAN FAZZINI, Petitioner, vs.

UTAH TRANSIT ATHORITY, Respondent.

DECISION AND ORDER

Case No. 08-13

By this appeal, Dan Fazzini Jr., Director Safe-Route Connection, Inc., seeks access to records of the Utah Transit Authority (“UTA”) pertaining to all complaints with regard to cyclists and UTA in the year 2007.

FACTS

On March 26, 2008, Mr. Fazzini made the following request for records pursuant to the Government Records Access and Management Act (“GRAMA”) from UTA:
[S]tatistics from 2007 for the complaints received involving cyclists to the UTA including:, Date of incident/complaint; Location of incident; Type of complaint; Other demographic information which is available related to the complaint; Text/notes of complaint; What the follow-up was and other relevant information; Also, and changes in driver training and policies related to such incidents.

Through a letter dated April 3, 2008, Mr. Fazzini’s request was denied by Michelle Larsen, UTA’s Records Officer. Ms. Larsen stated that the records sought by Mr. Fazzini were classified as “private pursuant to Utah Code Ann § 63-2-302.” Ms. Larsen additionally asserted the records sought by Mr. Fazzini were protected pursuant to Utah Code Ann § 63G-2-305(24) and § 63-2-302(2)(d) because they contained “data on individuals, the disclosure of which constitutes a clearly unwarranted invasion of privacy.” UTA did provide to Mr. Fazzini a copy of UTA’s policies concerning bicycles and other mobility devises.
In a letter dated May 2, 2008, Mr. Fazzini filed an appeal to John Inglish, General Manager of UTA, of UTA’s denial of his request. After receiving no response from UTA, Mr. Fazzini filed an appeal with the State Records Committee (“Committee”) requesting a review of UTA’s decision to deny his request for UTA records. The Committee, having reviewed the materials submitted by the parties, and having heard oral argument and testimony on July 10, 2008, now issues the following Decision and Order.

JURISDICTION

In its memorandum filed with the Committee pursuant to Utah Code Ann. § 63G-2-403(5), UTA argued that Fazzini had failed to exhaust his administrative remedies. Specifically, Fazzini filed his appeal of John Inglish's denial of his request directly to the Committee instead of filing an appeal to UTA's Appeals Board. Utah Code Ann.§ 63G-402(1), states that if the chief administrative officer of a governmental entity denies a records request under Utah Code Ann. § 63G-2-401, the requester may: "(a) appeal the denial to the records committee as provided in § 63G-2-403; or (b) petition for judicial review in district court as provided in § 63G-2-404." However, Utah Code Ann. § 63G-2-701 allows a political subdivision to “establish an appeals process for persons aggrieved by classification, designation or access decisions.” Utah Code Ann. § 63G-2-701(4)(a).

In the present case, John Inglish as chief administrative officer of UTA, denied Fazzini's request for records. Additionally, Mr. Fazzini testified during the hearing that he believed he was following the proper appellate procedure based upon his reading of Utah Code Ann. § 63G-2-402 and Ms. Larsen’s statement in her letter dated April 3, 2008, that he “may have other appeal remedies, as outlined in Utah Code Ann. § 63-2-401, et seq.” Even though UTA has the discretion to set up its own appeals process pursuant to Utah Code Ann. § 63G-2-701, based upon the facts of the case, UTA allowed Fazzini to have the right to directly appeal Mr. Inglish's denial to the Committee. See also Utah Code Ann. § 63G-2-701(5). Accordingly, we find that the Committee has jurisdiction to hear Mr. Fazzini’s appeal.

STATEMENT OF REASONS FOR DECISION

1. The Government Records Access and Management Act (“GRAMA”) specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303 and -304. UTA denied Fazzini the records he seeks on the grounds that the records sought are “protected” and or “private”. At oral argument the parties clarified Mr. Fazzini’s request to be for “complaints from online and telephone complaints for the year 2007.” The Committee, having heard argument from both parties, finds the records responsive to Mr. Fazzini’s request pertaining to complaints from online and telephone sources are public. The committee is also persuaded that the records may contain “private” information pursuant to Utah Code Ann. § 63G-2-303(2)(d), which, if released, would constitute a clearly unwarranted invasion of personal privacy. To the extent any records responsive to petitioner’s request contain “private” information, this information shall be redacted.

2. Mr. Fazzini, during the hearing, made a motion to request a waiver of fees associated with his request pursuant to Utah Code Ann § 63G-203(4)(a), claiming that the release of the information would benefit the public rather than him as an individual. The committee, having heard testimony of the parties, is persuaded the amount for the “fee” has not yet been established by UTA. Inasmuch as the amount is not established, the Committee has no basis for which to address a waiver of the fee and therefore, denies the petitioner’s motion.

ORDER

THEREFORE, IT IS ORDERED THAT the appeal of Dan Fazzini Jr. is granted as it relates to “complaints from online and telephone complaints for the year 2007.” UTA is hereby directed to within ten (10) days of receipt of this Order, identify and produce said records to Mr. Fazzini. UTA has the discretion to redact from any record produced all “private” information, which, if released, would constitute a clear unwanted invasion of privacy pursuant to Utah Code Ann. § 63G-2-302(2)(d); medical information pursuant to Utah Code Ann. § 63G-2-302(1)(b); and records pertaining to investigations undertaken for enforcement, discipline, licensing, certification, or registration purposes pursuant to Utah Code Ann. § 63G-2-305(9)(a). Mr. Fazzini’s request for a waiver of UTA’s fees is denied.

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the government entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Records Committee upon production of the records; or (2) a notice of intent to appeal. If the government entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies entities.

Entered this 17th day of July 2008.

BY THE STATE RECORDS COMMITTEE

____________________________________
SCOTT WHITTAKER, Chairperson
State Records Committee